Defamation

Introduction

Defamation means an attack on the reputation of a person. It tends to lower the image of the person. The injury is more to the reputation than to the self respect of the person. In India, defamation is both tort as well as crime and intention is not necessary element to constitute defamation.

According to Winfield, “Defamation is the publication of statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person. It is libel if the statement be in permanent form, the slander if it consists in significant words or gestures.”

 In the words of Park B., defamation is “a publication without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule”.

Defamation Section 499 of INDIAN PENAL CODE 1860

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Requisites of Defamation

1. The words (spoken or written) must be defamatory.
2. The defamatory words should directly or indirectly, refer to the person defamed and
3. Publication of words by a medium should take place.

Right to reputation is a facet of right to life of a citizen under Article 21 of the Constitution. The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.

It is of essence that in order to constitute the offence of defamation, it must be communicated to a third person because what is intended by the imputation is to arouse hostility of others. Therefore, the essentials of defamation are, first, the words must be defamatory; second, they must refer to the aggrieved party; third, they must be maliciously published. Intention is not necessary element to constitute defamation. A says—”Z is an honest man; he never stole B’s watch”; intending to cause it to be believed that Z did steal B’s watch. This is defamation, unless it fall within one of the exceptions.

In section 499 the words “makes or publishes any imputation” should be interpreted as words supplementing to each other. A maker of imputation without publication is not liable to be punished under that section. Bilal Ahmed kaloo v. State of Andhra Pradesh, 1997.

Kinds of defamation

The wrong of defamation is of two kinds—libel and slander. A libel is a defamatory statement which is addressed to the eye and is in permanent and visible form, for example, writing, picture, printing, caricature, effigy, statute or cinematography. A slander is the publication of a defamatory statement in some transient form, whether visible or audible, for example spoken words or gestures.

However, in the present day environment it has become difficult to determine that whether a certain defamatory statement is a libel or slander, for example, the defamatory matter recorded on a gramophone disc is addressed to the ear and not to the eye and it is a libel because it is in permanent form. Libel is, however, actionable per se, that is, without the proof of special damage, whereas slander is actionable only on proof of special damage. There are certain exceptions where slander is actionable per se, (1) Imputation of criminal offence to the plaintiff. (2)  Imputation of a contagious disease to the plaintiff which has the effect of preventing others from associating with the plaintiff. (3)  Imputation that a person is incompetent, dishonest or unfit for any assigned job office, profession and so on. (4)  Imputation of adultery or unchastity. This was, however, the position in English Law. In Indian Law, both libel and slander are actionable per se and there is no need of proof of special damages. 

Difference between Libel and Slander 

1. First on the basis of nature, Libel, the defamatory matter is in some permanent form, for example, written articles, printing, picture, caricatures etc. It is addressed to the eye where as In Slander, defamatory matter is in some transient form, for example, gestures, gossips, rumours. It is addressed to the ear. 
2. Second on the basis of position in English law, Libel is criminal offence as well as a civil wrong where as Slander is a civil wrong only.
3. Third on the basis of proof of special damage, Libel is actionable per se where as Slander is actionable on the proof of special damage.  
4. Fourth on the basis of innocence In Libel, The speaker may not be innocent where as In Slander The speaker is not innocent.
5.  Fifth on the basis of breach of peace, Libel conduces to a breach of peace where as Slander is not so serious in consequence.
6. Sixth on the basis of period of limitations, Under the English statutes of limitation, an action of libel is barred after 6 year. In India, the period of limitation is one year where as Under the English statutes of limitation, an action of slander is barred after 2 year. In India, the period of limitation is one year. 

This is basically a position in English law, the above stated distinctions do not find place in India. In India, libel and slander are treated alike, both of them are actionable per se. Both are considered to be an offence under Indian Criminal Law.  

Section 500 Punishment for defamation of INDIAN PENAL CODE 1860

Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Exceptions to defamation

The following are certain Exceptions to Defamation, where there is imputation of  any person and that imputation can harm his/ her reputation, still that does not comes offence of defamation:-

• It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
• It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
• It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

ILLUSTRATION- It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the public is interested.

•  It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

• It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

ILLUSTRATION- But if A says—”I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, in as much as the opinion which he expresses of Z’s character, is an opinion not founded on Z’s conduct as a witness.

• It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

ILLUSTRATION- A person who makes a speech in public, submits that speech to the judgment of the public.

• It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

ILLUSTRATION- A Judge censuring in good faith the conduct of a witness, a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier, etc.

•  It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. Like- If A in good faith accuse Z before a Magistrate.
• It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.
• It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

 Maksud Saiyed v State of Gujarat, (2005) 5 SCC 668, in this case a trustee of a temple was charged with defamation, the alleged defamatory statement being that the complainant, who performed the worship in the temple, had been convicted and sent to jail for the theft of idols belonging to the temple. At the time when the statement was made, an appointment in connection with the temple was in question. It was held that the trustee was justified in making the statement either in the interest of the temple or because the statement was no more than a publication of the result of proceedings in a Court of Justice.

Ramanand v State, (1881) 3 All 664, in this case C was put out of caste by a committee of his caste-fellows on the ground that there was an improper intimacy between him and a woman of his caste. Certain persons, members of the committee, circulated a letter to the members of their caste stating that C and such woman had been put out of caste and requesting the members of the caste not to receive them into their houses or to eat with them and also made defamatory statements about them. It was held that, had such persons contented themselves with announcing the determination of the committee and the grounds upon which such determination was based, they would have been protected, but in as much as they went further and made false and uncalled for statements regarding C; they had not acted in good faith.

Conclusion

The essentials of defamation are the words must be defamatory; they must refer to the aggrieved party; they must be maliciously published. In this section, words should supplementing to each other. A maker of imputation without publication is not liable to be punished under that section. But there are circumstances where the reputation of a person is imputed, these does not fall under section 499 of IPC. Intention is not necessary element to constitute defamation.

(Author: Palak Jain, pursuing LLB from Faculty of law, Delhi University.)